Mohsin v Bob Jane T Marts Pty Ltd
[2013] VCC 1923
•18 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-02123
| FARHAN TAHSIN MOHSIN | Plaintiff |
| v | |
| BOB JANE T MARTS PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 November and 2 December 2013 | |
DATE OF JUDGMENT: | 18 December 2013 | |
CASE MAY BE CITED AS: | Mohsin v Bob Jane T Marts Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1923 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering and loss of earning capacity consequences – injury to the right knee – whether the consequences of such injury were at least very considerable – whether the plaintiff had established a loss of earning capacity of 40 per cent or more.
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors Podolak (2005) 14 VR 622; O’Donnell v Reichard [1975] VR 916.
Judgment: Leave granted to the plaintiff to commence an action claiming damages for pain and suffering and loss of earning capacity.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Ruddle with Mr J Fitzpatrick | Patrick Robinson & Co |
| For the Defendant | Mr J Simpson | Wisewould Mahony Lawyers |
HIS HONOUR:
1 Farhan Tahsin Mohsin alleges that he suffered injury to his right knee in the course of his employment with the defendant. He seeks the leave of this Court to issue a proceeding to recover damages for pain and suffering and loss of earning capacity in respect of that injury, and a psychiatric or psychological disorder which he claims results from it.
2 His right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that he has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a)
3 The term “serious injury” is defined in s134AB(37) of the Act insofar as is relevant to this application as:
“(a) permanent serious impairment or loss of a body function; or
…
(c)permanent severe mental or permanent severe behavioural disturbance or disorder.”
4 The body function relied upon in this application is that of Mr Mohsin’s right lower limb.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors Podolak (2005) 14 VR 622 at paragraphs [18] and [19]
6 The impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering or loss of earning capacity consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked and as being at least very considerable.[3]
[3]Section 134AB(38)(c)
7 A mental or behavioural disturbance or disorder shall not be held to be severe unless the pain and suffering or the loss of earning capacity consequences are, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe.[4]
[4]Section 134AB(38)(d)
8 In respect of loss of earning capacity damages, leave is not to be granted by the Court on the basis that Mr Mohsin has suffered a loss of earning capacity required by s134AB(38)(b) unless he establishes, in addition to the requirements of s134AB(38)(c), that at the date of the hearing of the application he has suffered a loss of earning capacity of 40 per cent or more calculated in accordance with ss38(e), (f) and (g).
9 Mr Mohsin submits that the pain and suffering and loss of earning capacity consequences of both his physical injury and non-physical injury can be fairly described as being more than significant or marked and at least very considerable. The defendant denies this is so.
10 The matters in issue and to be determined in this application are:
(a)What injury has Mr Mohsin suffered to his right knee?
(b)Can the pain and suffering or loss of earning capacity consequences of such injury be fairly described as being “at least very considerable”?
(c)Has Mr Mohsin suffered a permanent severe mental or permanent severe behavioural disturbance or disorder?
(d)Has Mr Mohsin suffered, as a consequence of his physical or non-physical injury, a loss of earning capacity of 40 per cent or more when measured in accordance with ss38(e), (f) and (g) of s134AB?
Background
11 Mr Mohsin is aged forty-four. He was born in Iraq. He attended the University of Iraq where he completed an engineering course in about 1993. Despite its title, it would appear that the course did no more than qualify him for work as a panel beater and as an assessor of repairs required for damaged motor vehicle bodies.
12 He spent time in Turkey before arriving as a United Nations refugee in Australia in 2002. In Turkey he had operated his own motor vehicle repair business.
13 In Australia he worked in a chicken factory for some months before commencing with the defendant in February 2003. His employment history here has been good.
14 He worked for the defendant at stores in Tasmania, in Melbourne and at Taylors Lakes. He became workshop manager and supervisor. There were four or five others working with him. The work involved fitting tyres to motor vehicles. There was no office or administration work done at the site. For the year ended 30 June 2009, he earned $55,124.
15 His work involved lifting heavy tyres and was strenuous. In about November 2009, his right knee gradually became painful. He worked on. On 5 December 2009, whilst kneeling and handling a tyre, his knee suddenly became much more painful and began to swell. By the end of the day, he was unable to work.
Aftermath of injury
16 His wife drove him to the Footscray Hospital where he was admitted. He was given an injection in the knee for pain relief. He was discharged home and later saw his then general practitioner, Dr Shivaraj. An MRI scan of the knee was performed on 10 February 2010 and soon after he was referred to an orthopaedic surgeon, Mr Douglas Li. Mr Li recommended surgery and this was undertaken on 12 March 2010. He underwent an arthroscopic lateral meniscectomy and debridement. Following the surgery, he had problems with a build up of fluid in the knee and Mr Li later informed him that a cyst was present. This was aspirated in May 2012.
17 He has undergone physiotherapy over a lengthy period. On the recommendation of his physiotherapist, he undertook a gym program. In particular, he uses an exercise bike, treadmill and other gym equipment.
18 In August 2010, he returned to work part-time, performing light office duties. The defendant required him to perform additional duties outside those for which he had been certified fit. He ceased work after about 4 weeks. In February 2011, the defendant terminated Mr Mohsin’s employment, apparently on the basis that it had no work available that he could perform within his limitations.
19 He has been prescribed significant analgesic medication in the form of Tramadol, Panadeine Forte and Nurofen.
20 By 2011, Mr Mohsin had developed depression and anxiety. He was prescribed anti-depressant medication which he still takes.
21 Mr Mohsin has on occasions assisted a friend, Adnan, in his job polishing floorboards. Adnan had encouraged Mr Mohsin to accompany him on jobs on 10 to 15 occasions in the last 1 ½ years.[5] When he does accompany Adnan, he generally travels with him to the job site and has to remain until Adnan brings him home. He admitted to having helped with small tasks such as stirring (presumably polish) and bringing small quantities of wood to where it was required. He had not operated a polishing machine.
[5]PCB 30
22 Mr Mohsin stated that he needed to leave the house when there was stress at home; he just needed to get out. His evidence was that he was not paid for such help.
23 Mr Mohsin was not challenged concerning this evidence. I accept it. I do not consider he was performing any real work or that his attendances with Adnan indicate any capacity for employment.
Diagnosis of injuries
Physical Injury
24 The nature of the physical injury suffered by Mr Mohsin is relatively non-contentious. An MRI scan of his right knee performed on 10 February 2010 reported as showing extensive tearing of the lateral meniscus.[6] Surgery performed on 12 March 2010 was without complication.[7] The tear was resected and the remainder of the knee was noted to be in pristine condition.
[6]Plaintiff’s Court Book (“PCB”) 40
[7]PCB 56A
25 A further MRI scan taken on 9 April 2013 was reported as showing signal abnormality suggestive of degenerative tearing/fraying with under surface extension and possible further degenerative change or tears.[8]
[8]PCB 114
26 Mr Kenneth Brearley, orthopaedic surgeon, noted obvious coarse crepitus in October 2013.
27 The defendant arranged for Mr Mohsin to be examined by orthopaedic surgeons, Mr Peter Kudelka, Mr John Bartlett, Mr Owen Deacon and Mr Ian Jones. Their diagnoses of injury were consistent with those referred to above.[9]
[9]Mr Kudelka at Defendant’s Court Book (“DCB”) 10; Mr Deacon at DCB 37; Mr Bartlett at DCB 45; Mr Jones at DCB 52
Non-Physical Injury
28 Mr Mohsin’s non-physical injury was also relatively non-contentious. Reports were tendered from his treating psychologist Mr Tomek; treating psychiatrist Dr Al Humrany; and medico-legal psychiatrists Dr Jager, Dr Athey, and Dr Nathar.
29 In October 2011, Dr Jager considered that he had a major depressive disorder.[10]
[10]PCB 52C
30 In December 2011, Mr Tomek reported a chronic adjustment disorder with mixed features. He noted that he continued to be frustrated as a result of being unable to work but otherwise considered there was no evidence of clinical depression, psychosis or hypomania. However, the extended duration of his adjustment difficulties rendered him vulnerable to depression.[11]
[11]DCB 40; PCB 61, 64
31 In March 2012, Dr Athey concluded that he was suffering from anxiety and depression that had arisen in the context of ongoing pain and inability to work. He considered that he satisfied the criteria for an adjustment disorder with mixed anxiety and depressed mood but considered that he may also have a major depressive disorder.[12]
[12]DCB 20
32 In October 2012, Dr Nathar reached a similar conclusion.[13] In addition to the physical explanations for his right knee problem, Dr Nathar considered that there was sufficient evidence to support the additional psychiatric diagnosis of a pain disorder involving psychological factors.[14]
[13]PCB 89
[14]PCB 89
33 In April 2013, Dr Al Humrany reached a similar conclusion to Dr Athey and Dr Nathar. He considered that he suffered from an adjustment disorder with a mixture of anxiety and episodes of depression due to alleged chronic pain.[15]
[15]PCB 105
34 On the basis of the evidence referred to above, I consider it likely that the appropriate diagnosis is that of an adjustment disorder with mixed anxiety and depression.
35 The real issue in this matter is the extent of the consequences of those physical and non-physical injuries.
Consequences of Injuries
36 Counsel for the defendant submitted that the consequences of Mr Mohsin’s injuries fell short of the statutory threshold. He submitted that the physical consequences of the knee injury have been overtaken by secondary psychological consequences. Further, he submitted that those secondary consequences did not satisfy the threshold test for the purposes of part (c) of the “serious injury” definition.
37 Such secondary psychological or psychiatric consequences cannot be taken into account when assessing an injury under paragraph (a) of the definition. They may only be taken into account for the purposes of paragraph (c).[16]
[16]Section 134AB(38)(h)
Consequences of Physical Injury
38 I do not accept that the physical consequences have effectively been overtaken by secondary psychological consequences. Taking into account the evidence of Mr Mohsin and the evidence of medical practitioners whose reports were tendered, I am satisfied, on balance, that the consequences of his physical injury are:
(a) He continues to suffer constant pain in his right knee. The level of pain varies.
(b) He has particular difficulty walking on uneven ground, climbing stairs and using a ladder.
(c) At times he is unstable on his feet because of perceived weakness in his right knee and he has fallen on occasions.
(d) He has sought physiotherapy treatment regularly since the injury which I note is now some four years ago. When the WorkCover claims agent ceased funding that treatment he has continued it when he could afford to pay for it.
(e) He has been prescribed strong analgesic medication in the form of Tramadol and Panadeine Forte in addition to Nurofen.
(f) He is unable to run, kneel, and squat.
(g) His sleep is interfered with by knee pain.
(h) He previously owned and enjoyed driving a low-slung style of car. After his knee injury he found it difficult to get in and out of it. He held onto the car for a time but sold it some time before he swore his first affidavit in support of this application in December 2011. He can drive a normal car.
(i) He has ceased dancing.
(j) He is restricted in the physical activities that he can do with his children although I do not accept that he is unable to play with them at all. I accept that he is unable to participate in vigorous activities involving running, twisting, kicking a ball and the like.
(k) He has been unable to continue in his employment with the defendant where he had worked for several years. On any view of the medical evidence, the range of employment open to him since his injury has been significantly reduced. He has always worked in a physical capacity here and in Turkey. He is no longer able to do so.
(l) He has substantial wasting of his right thigh indicative of lack of use. I consider that the likely explanation for this is the on-going pain of which he complains.
39 Mr Mohsin is aged forty-four. There is no reason to doubt that, but for the injury, he would have continued working until a normal retirement age. On balance I find he will continue to experience pain in the foreseeable future. In that sense I find that the physical symptoms of his injury are permanent.
40 The defendant tendered DVD film of Mr Mohsin taken on 13 August 2013. The film depicted him walking distances of about 20 metres for a few seconds at a time. He was not observed to limp. He was not seen to engage in any strenuous or vigorous activities. He was not observed to do anything that he had at any time denied he was capable of doing. The film did not assist me in my assessment of the consequences of his injuries.
41 There is nothing in the medical evidence that causes me to doubt that the symptoms and consequences of his knee injury are other than genuine.
42 I am satisfied that those consequences, when judged by comparison with other cases in the range of possible impairments or losses, are fairly described as being more than significant or marked and as being at least very considerable.
Consequences of Non Physical Injury
43 I am satisfied that, in addition, Mr Mohsin has suffered from symptoms of depression as a consequence of his adjustment disorder, secondary to his physical injury. This, I consider, is not surprising in the case of a man who for years had worked hard in a physical environment but was now unable to do so. His financial problems resulting from his unemployment may also have contributed to his depression.
44 However I am not satisfied, on the basis of the evidence of his treating psychiatrist, treating psychologist, and the medico-legal psychiatrists whose reports were tendered, that his condition was such that warranted the description of “severe”. I accept that he has an adjustment disorder but I am not satisfied that the pain and suffering consequences of such disorder, when judged by comparison with other cases in the range of possible mental and behavioural disturbances or disorders, are fairly described as being more than serious to the extent of being severe. “Severe” is a stronger word than “serious”. I note that he has only been seen by his treating psychiatrist on one occasion in April 2013 and that he did not follow up with any further treatment from him.
Loss of Earning Capacity
45 Mr Mohsin claims that the injury to his right knee prevents him from working in more physical employment and that he does not have the skills or experience to perform sedentary office work.
46 The defendant concedes that his injury would prevent him from returning to his pre-injury employment or any other employment which involved him spending substantial time on his feet, kneeling, squatting or heavy lifting. However, the defendant submitted that Mr Mohsin is fit to engage in a range of sedentary employment positions.
47 The recent orthopaedic opinion is split into two camps. Mr Li and Mr Brearley, orthopaedic surgeons, consider Mr Mohsin to be permanently unfit to return to work in any capacity.[17] Mr Bartlett and Mr Ian Jones consider he was unsuited to employment which would involve prolonged weight bearing, excessive use of stairs, prolonged squatting, kneeling or agility.[18] Both considered that, from a physical point of view, he was fit for a range of sedentary positions. In addition, Mr Bartlett considered that, by reason of his knee injury, he was predisposed to the premature onset of osteoarthritis.
[17]PCB 115A, 115
[18]PCB 45
48 His current general practitioner, Dr Sleaby, stated that he was not currently fit to return to work for any duties but that vocational rehabilitation may be of help in finding suitable employment in the future.[19]
[19]PCB 111
49 I accept that he is not capable of performing work which involves him spending large portions of the working day on his feet, or where he would be required to squat, kneel or climb steps or ladders. He is not fit for his pre-injury duties. However, I consider that, from a physical point of view, he would be able to perform sedentary work. Neither Mr Li nor Mr Brearley explained adequately why he would not physically be able to perform such work.
50 In any event, he has no experience in or skills for administrative or office duties and the parties agreed that his ability to perform suitable sedentary work is dependent on him being able to speak, write and read English well enough for him to prepare and read reports, follow instructions, and to record transactions accurately.
51 Counsel for the defendant pointed to what he submitted were factors indicating that Mr Mohsin spoke English well enough to obtain sedentary employment. These were that he had a university degree from Iraq and spoke four languages (albeit other than English), that he had operated his own panel beating business in Turkey, that he was married to an Iraqi/Australian woman who spoke English, and that DVD film shown to him in cross-examination had shown him talking to an assistant at a telephone shop.
52 I do not accept that any of those matters indicate an ability to speak, read or write adequate English to enable him to work in sedentary administrative positions.
53 In September 2011, Ayres Management Services Pty Ltd provided a vocational assessment report for the claims agent in which the author referred to Mr Mohsin presenting with “broken English” and noting that he had the ability to read a Grade 1 based children’s book but had quite poor writing.[20]
[20]DCB 64
54 In September 2012, a senior occupational therapist, Margaret Leitch, reported that there was no unrestricted recognised occupation in the open labour market for which Mr Mohsin was likely to qualify and that that situation would continue for the foreseeable future.[21] She reported that his spoken English was sufficient for basic conversation only and that he required assistance for more complex verbal communication. His reading was assessed at the level of a 6.7 year old person.[22] She noted that he was unable to correctly write his address and that when he did write, it had an immature style.[23]
[21]PCB 121
[22]PCB 121
[23]PCB 122
55 I am satisfied that Mr Mohsin’s spoken English is poor and that his ability to read and write in English is very poor. He might be able to make himself understood on some or even most occasions, but I am not of the view that he would be suitable for employment in a position that required him to write or read English or in a position where he was required to speak articulately in English for any length of time.
56 The defendant relied upon a report of Shannon McGuire, a rehabilitation consultant, as demonstrating a number of jobs suitable for him.[24] Notwithstanding the optimistic views expressed in the report, I regard each of the positions identified as being ones where good spoken and/or written English would be required. Mr McGuire acknowledged that Mr Mohsin would have to improve his English literacy and computer skills to be competitive for such positions.[25]
[24]DCB 62
[25]These included positions as an insurance loss adjuster, DCB 66; production manager/supervisor (automotive), DCB 67; an inquiry/customer service clerk/information desk clerk, DCB 76, and a sales assistant, DCB 73.
57 Further, I accept that Mr Mohsin had been persevering with tuition in English up until recently, attending a TAFE college two nights a week for three hours on each night. I accept that he was making every attempt to learn English. However, notwithstanding his presence here in Australia for some nine years, he has been unsuccessful in mastering the language. He has established no more than a rudimentary ability to converse with people in simple terms. Mr Mohsin’s evidence was that the claims agent had terminated his English tuition some months ago. I draw the inference that the claims agent considered that continuance of such course would be of no benefit for him.
58 Further, I note that the defendant had employed Mr Mohsin for some 9 years before his injury. It was in the ideal position to present evidence from fellow employees concerning the quality of his English language skills in that period. It led no such evidence. I draw the inference that such evidence would not have advanced the defendant’s case.[26]
[26]O’Donnell v Reichard [1975] VR 916
59 With regard to s134AB(38)(g), I accept that Mr Mohsin has made all reasonable attempts to rehabilitate and retrain himself. He has attended for physiotherapy treatment virtually from the occurrence of the injury. When the claims agent ceased to fund such treatment, he has continued with it at his own expense when he was able to afford to, up to the present time. Similarly, he continued to attend English classes at least up until the time when the claims agent terminated them.
60 Counsel for the defendant submitted that I should not accept Mr Mohsin as a witness of truth. None of the matters referred to by counsel cause me to doubt the truthfulness of Mr Mohsin’s evidence.
61 It is my view that there is no employment for which Mr Mohsin is currently suited having regard to the matters referred to in the definition of “suitable employment” in s5 of the Act. Further, I am satisfied that this is likely to be the case for the foreseeable future. It follows that I am satisfied that he has suffered a loss of earning capacity of more than 40 per cent.
Conclusion
62 For the reasons expressed above, I am satisfied that Mr Mohsin suffers from a “serious injury” as that term is defined in the Act.
63 Accordingly, there will be leave pursuant to s134AB(16)(b) of the Act for him to commence a proceeding claiming damages for pain and suffering and loss of earning capacity resulting from injuries suffered by him in the course of his employment with the defendant.
64 I shall hear the parties in respect of any consequential orders sought.
- - -
0